Presented By Practical Law



Courts have taken a variety of approaches to determining who owns the pre-transaction attorney-client privilege after a merger, asset sale or other similar corporate transaction.  Given the lack of a bright-line rule as to which entities will control the privilege, companies should understand and account for what will happen to attorney-client communications post-closing.  The failure to do so may result not only in confusion, but in litigation between the parties and potentially having to relinquish privileged material.

This Seller Beware: Protecting Privileged Communications After a Corporate Transaction Article from Practical Law examines the judicial approaches to pre-transaction communications protected by the attorney-client privilege and issues companies entering into corporate transactions should consider to preserve the privilege, including:

  • Privileged pre-transaction communications under Delaware and New York Law.
  • The practical consequences approach to privileged pre-transaction communications.
  • What companies involved in a transaction should do to protect attorney-client communications, such as:
    • Determine under which state law the agreement is governed and whether there is an applicable statute.
    • Consider which categories of communications are particularly sensitive to disclosure.
    • Specify in the agreement which entity will retain control of which types of privileged communications post-closing, to the extent allowed under applicable law.

Proactively accounting for these communications will ensure that the transacting parties, rather than a court, will be the final arbiter of who owns the privilege.

To read the full Practical Law Article, see Seller Beware: Protecting Privileged Communications After a Corporate Transaction.

Additional related resources such as Attorney-Client Privilege Checklist: Scope of Protection Attorney-Client Privilege Checklist: Scope of Protection and more are available now with a free, no-obligation trial to Practical Law.

Once upon a time, a client-in-need would flip through the Yellow Pages in search of a lawyer that gave off a competent appearance – with “appearance” being the operative word. These days, a lawyer’s business card is their website, which is precisely why your online presence should be at the forefront of your client strategy. Discover how small/medium law firms and solo practitioners can play the online ‘court’, and win.

How to Build an Online Presence in a Day

In 2012, the legal research firm LexisNexis released a study in which they showed that 76% of Americans use online resources to find an attorney, with 53% using online resources to validate a lawyer’s credentials following referrals from friends and colleagues. In order for a law firm or solo practice’s online practice to succeed, several different online presences must collaborate and corroborate each other: A firm’s website will under-perform if it has no search engine presence or legal database it is attached to, just as a lawyer’s social media presence is moot without a professional website to lead prospective clients to.

  • Your Website: The prospect of spending thousands of dollars and countless hours building a website is unpalatable for many new firms. Thankfully, free alternatives abound. IM Creator offers dozens of professional, user-friendly website templates that can be used to build your firm’s website in a few hours, for free, and with no web designer or programmer needed. Its simple “drag & drop” editor lets you add your own content instantly, and websites built using our service are search-engine friendly.
  • Legal Directories: After search engine queries, legal directories are (according to LexisNexis) the second most popular way clients search for, validate, and select a lawyer. Once your website is up and running, make sure to link it to all directories you are registered with, as well as others that are relevant to your practice. Properly completed directory profiles also help boost your SEO (Search Engine Optimization), as they create connecting threads to validate your online presence.
  • Social Media: Many lawyers (and especially those who have worked in highly competitive “big” firms) maintain a love-hate relationship with social sites like LinkedIn. Nevertheless, LinkedIn provides further credibility to your online presence by linking your work to past clients and legal contacts. Creating a link between your firm’s website and these social media sites also allows future clients to search for personal and professional connections you may share.

Design for Legal Practices

On average, internet users spend about 5 seconds on a website before they decide to read on or “bounce” (online marketing terminology for a user who leaves the page before engaging with it). The “visual language” of a website conveys the tone of the practice it serves, and forms a significant part of a visitor’s first impressions.

  • Branding Basics: If you invest in any aspect of your firm’s branding, make it your logo. As we’ve seen, spending money on building your website is rendered unnecessary with a free online website builder, but you may still benefit from paying a designer to help you create a basic visual language that can be used as the aesthetic basis for your overall web design.
  • The Language of Colors: Much has been written about the branding message that colors portray in design. Law firms too must look the part they play, as clients tend to prefer sober, monochrome color-schemes in grayscale and navy blue that yield images of a business suit, not a hawaiian shirt. Context is important, though: In specialized legal fields such as family law, a website’s color scheme should reflect the kind of problems it is dealing with. In this case, a more muted palette of pale greens or blues softens the aesthetic tone of the site, and gives the impression that the firm is sensitive to the personal issues at hand.
  • Just Put Down the Stock Photography: Clients tend to want to put a face to a name when they are selecting a lawyer to work with. Instead of scouring the web for stock imagery, consider using a professional headshot or photo of your office. If you do need some stock photography to add further visual interest to your page, though, IM Creator have created IM Free, a tightly-curated database of relevant images that are free for commercial use.
  • Don’t Overcrowd: The best websites don’t overwhelm visitors with content. Website templates from site builders help effortlessly manage the organization of your website’s content, but it’s still important to continuously recite the “simplicity is key” mantra as you add content to your website.
  • How to Organize Your Site: With such a short initial time-frame to grab a user’s attention, it’s important to know what information should be relayed to prospective clients first. Web users from Western countries tend to start at the top left of a page then read left to right and down, meaning that the upper two-thirds of your page should contain basic information such as what you specialize in, a “call to action”, and a reason for users to explore further.
  • Where to Place Your Call to Action: Your “call to action” is your first point of contact, and a crucial piece of content on your site. For most law firms, this may simply be a phone number and email, but contact forms are also easily implemented and increasingly popular. Your call to action is best placed prominently on your site, either in the top right corner or about a third of the way down the page on the right, where visitors’ gaze naturally flows to.

 Web Essentials

  • The Importance Information Curation: Just like your LinkedIn page, clients want to know that you are active in the legal community. The front page of your website should contain links or summaries to any legal articles you have published, as well as relevant news about your firm that will lend further credibility. This includes membership to legal societies, presence on legal directories, and any other professional markers.

But beware: nothing degrades a website’s credibility more than out-of-date information. Social media widgets help to relieve the task of manual updating; with IM Creator, you can drag and drop live social feeds anywhere on your site, so that anything you post to LinkedIn, Facebook, Google+, or Twitter will echo on your own site.

  • Testimonials: According to LexisNexus, 57% of people who used the internet to search for a lawyer checked a lawyer’s ratings and reviews, and 65% of those who did found them to be moderately to extremely influential in their decision. Encouraging existing clients to add reviews to legal directories and social sites LinkedIn is important, but many clients also look for testimonials on your website.
  • Geolocation: Adding a Google Maps widget to your website increases your SEO, but also helps prospective clients search for you locally. Google’s Places for Business automatically syncs all your key information – including your address, contact details, office hours, description, and ratings – onto one Google-synchronized page that will appear as soon as your name is searched for, or when a query like “law firms in my area” is inputted.
  • A Note on Costs: Few lawyers speak about the costs involved in legal advice upfront, but it can be helpful to add a page on your website describing how legal fees are determined, and whether or not you offer any free initial consultation.

 Free Tools to Track Your Progress Online

Once you’ve synchronised your website with your social profiles and membership to legal directories and societies, there are a number of ways to track how your online presence is affecting the growth of your law practice:

  • Google Analytics: Perhaps the most comprehensive yet straightforward of data analytics tools on the market, Google Analytics is free to use, and comes with real-time tools to track the number of visitors to your website, where they are coming from, how long they spend on your site, and what they are clicking on while there.
  • Hootsuite: Hootsuite aggregates all your social media profiles into one account, so that you can synchronise and keep track of your social media presence. Instead of updating news to LinkedIn, Twitter, or Facebook one by one, Hootsuite also lets you schedule news that will be sent out to all your social media profiles at once.
  • WooRank: WooRank instantly reviews your website for its SEO ranking, then provides you with a list of recommendations to help you figure out how you can improve. WooRank also offers visitor data and social media tracking, but it also helps you to figure out things like SEO keywords and backlinks, as well as any inconsistencies in setup of your site.

 The Internet Doesn’t Care about Size

The internet carries with it a powerful message: No matter how big or small your business is, a successful web presence leads to professional success. Creating a name for yourself has never been so straightforward – and inexpensive – even as competition is steep. Small firms and solo-practitioners don’t need a fancy office or a team of management and branding gurus in their trail. All they need is a well-designed website, and their name in all the right (online) places.

Image Credits:

Toshiba Laptop by Garryknight.

Getting The Edge in Recruiting

When I was a semi-professional card-counting blackjack player, I legally exploited casinos through an inherent mathematical defect in the game and placed my bets in direct proportion to my advantage.  I kept track of ratios between cards to determine the size of this advantage, known as the “count.”  If I did not have an advantage, I would sit out a few hands until the “count” was high enough for me to come back in to the game. I would spend hours counting cards just to get a one percent edge over the house.

An edge, even a small edge of just one percent, is all you need to get ahead of your competitors. If you are slightly ahead of them, you are still ahead and you hold an advantage over them. In the lateral game of recruiting partners with loyal clients, minor changes in major areas will also pay big dividends. Here are three ideas that your firm can use to increase the odds of potential laterals moving to your firm:

1. The Message. What is the story of your firm that is going to attract that lateral partner sitting on the fence?  You need to spend time discussing this with those colleagues who are involved in the lateral recruiting process.  This needs to be a consistent message but must not seem contrived. The story needs to be authentic, congruent and compelling.

2. The Difference.  The story also must extend beyond “a collegial culture and a robust platform.”  That phrase is plain vanilla and is what everyone says.  You need to say things that no other law firm can say. Most law firms do the same type of work for the same types of clients and employ the same type of people who do it.

You have to dig deep to find points of differentiation.  Sometimes they might seem minor to you, but what might hold little relevance to you could be the main reason a partner moves to your firm. Don’t make judgments based on your world view but from the perspective of your prospects.

Some points of differentiation are visible on your website, such as the number of offices and the number of attorneys that are part of your firm.  Other subtle but powerful points of differentiation I have come across in the past include:

• the high retention rate of partners.
• a commitment to marketing through a large and tenured marketing department.
• the process and protocols you follow to thoroughly integrate new partners.
• the structured social gatherings of your firm which makes client sharing and introductions flow easier. Do you have ‘fine wine’ and ‘craft beer’ committees to facilitate this?
• ways that make it easier for partners to communicate to each other so it is easier for them to help each other.
• technology tools that assist in collaboration on projects.
• leadership development training so that the partners are better equipped with skills required to lead teams.
• sales advisors who are adept at sniffing out pockets of opportunities.  They can advise partners on how to orchestrate ways to get more business from existing clients and see patterns that are veins of gold for new vertical niches.
• the number of speaking engagements that are delivered each year at business conferences and trade association meetings.
• the amount of publishing from the partnership, including textbooks, trade journals, blogs, articles, regular columns and business books.
• the tenure of the administrative and support staff.

3. The Tools.  Prepare simple communication tools that make it easy for recruiters and others to tell your story. Don’t ever say to a prospective lateral, “Just look on our website to learn more about us. It’s all on there.”  Visiting a website takes work.  Make it easy on them.  Make readily available the information they will use to choose your firm.

Put together several one sheets and put them in pdf format so that they are easy to read.  Put together three types of one-sheets:

1) a firm summary one-sheet that gives an overview of your firm including key rankings.

2) an FAQ sheet that answers the most-often asked questions of prospective laterals.

3) a one-sheet for each practice group that you are trying to expand.  Have it hyperlinked to biography pages of key partners and recent hires in the group.

If you implement just one of these three ideas, I am confident that it is enough to give you a significant edge in your effectiveness to recruit partners.  I know this because I spend all day talking to partners who are curious about other opportunities and I know what motivates them to move.  When I have a client who actively works with me in building the story based on what I have written above, then I know it’s just a matter of time before we find a star partner who will move to their firm.  And just like counting cards in blackjack, a slight edge in this game always pays big dividends.

Copyright © 2014 Scott Love

Scott Love grows law firms and accelerates attorney careers by conducting partner-level and group searches for law firms and facilitating law firm mergers. He has been a career ‘headhunter’ since 1995 and is a graduate of the U. S. Naval Academy. Scott lives in Washington, DC, with his wife, two children, and a toothless rescue dog named Smoky. He can be reached at 202-737-5555. To learn more, please visit or email him at

You invest in technology on the premise that it will enable greater profitability in the end.  For example: an e-discovery subscription cost of $1000 can save you $10,000 in fees to bring temporary attorneys on board for document review.

But most ROI is not so easy to measure. How can you tell whether you will see a return on, say, case analysis software, or a legal drafting tool? You need real value in return for your investment in litigation technology.

In Tracking ROI: The Bottom Line on Technology Solutions for Small Law Firms, Mick Lavelle, Senior Director of small law firm Inside Sales and Account Management at Thomson Reuters, walks through two ways to measure the return on litigation software.

  • Case analysis/case management: software that organizes case files, facts and exhibits, allows searching even across image or PDF files, and even surfaces important facts that can impact case strategy.
  • Litigation drafting: software that installs into a word processor, and enables you to research, access case files, cite authority and more.

Tracking ROI is the next in the company’s Independent Thinking series, offering business and trend insights for small law firms. Download the free article to delve into value of litigation technology.

For some law students, taking classes during the summer is the right choice. In this infographic, the folks at the UC Hastings Summer Legal Institute make their case for a summer spent studying in San Francisco. Registration for summer 2014 classes will open March 24, 2014, for current UC Hastings students, and April 1, 2014, for all other students. Applications will be accepted until May 7, 2014. Full program details are here….

So you spent a considerable amount of time courting, selling and maybe even doing some friendly stalking of that attractive lateral partner candidate with a sizable book. After he or she ignored your emails and didn’t return your calls, a few weeks go by and you read a press release in the legal media announcing the recent move to a competing firm.

Rats. Another one got away from you. You cringe when you consider how much time was spent in meetings that did not bear fruit. Your heart aches when recall how you were led to believe this was a marriage made in heaven.

You have been rejected.

The sting of rejection is painful, even for fancy law firms. But you need to find a way that you can turn this disappointment into a legitimate learning experience.

I’ve seen hundreds of scenarios like this, as this is my nineteenth year as a ‘headhunter.’ Twelve years ago, I started training and consulting to other search firms on the side. I developed processes that improved their recruiting and placement skills. This little project eventually grew into an international training company for recruiters, with over 4,000 search firms investing in my books, training tools and attending my seminars. When it came to failed placements, I introduced to the executive search industry a comprehensive model that I developed on how they can conduct “deal autopsies.” This became a regular part of many search firm’s training meetings each week.

I told my industry colleagues, as I would share with you, that the lessons you need to learn are hidden in the disappointment of failed placements. These failed placements are like the Land of Misfit Toys. You are always surprised to find such magical treasures when you go there. When things go well you are too busy daydreaming about the prospects and counting the dollar signs spinning around in your head; but when the deals fall apart, you start paying attention to how you need to improve.

Here are three ideas to consider as you conduct a mini version of a “deal autopsy” to make positive changes to your law firm’s recruiting process:

1. Review your internal process. Who is the quarterback? Who is the sponsor? These are important roles that you need to clarify.  The quarterback is the partner (usually the office managing partner, practice group leader, or hiring partner) who is taking the lead in managing this process of each placement from start to finish.  Sometimes it is a capable internal recruiter who has enough firm-wide political capital to snap fingers and get partners to make recruiting a priority and execute.

The sponsor is that peer level partner (or could be the same quarterback) who serves as the candidate’s internal advocate and can rally support to get the rest of the partnership interested in bringing the candidate over.  The sponsor usually continues the relationship into assimilation into the firm.

It may be worth your time to flow out your process in a visual format.  For ideas, read one of my previous Above The Law articles here, and download the pdf in the article as a guide to help you create your own visual process flow chart:

2. How much time passed between steps? There is a saying in my profession of recruiting that “Time Kills All Deals.” More time between steps means that your deal is more likely to fall apart.

I recommend a 24-hour response time to each action item. Even if scheduling that next meeting is a week away, get it on the calendar within 24 hours of the previous step.

Each placement develops a rhythm, and extended time between steps allows other potential deal-killing variables to insert themselves into the process. Examples of this include another recruiter trying to place your lateral prospect with another firm; or the prospective lateral referring a large piece of a matter to an internal partner in his current firm, thereby hand-cuffing him for another year. If only you had returned that call earlier or scheduled that meeting sooner, you would have built enough momentum in the candidate’s mind to overcome those opposing forces.

3. Did the candidate not feel very important? If you are interested in this prospect, then you need to make it very clear that he or she is a big deal to your firm. Be specific.

Here is some verbiage you can use. Please do not let its simplicity keep you from using it:

“We see the potential for us to achieve mutual goals because of your experience in_______________ and because of our need for _________________. That will help us to ______________ and will give us the benefit of _______________. And we see that it can help you to achieve ________________ because of _____________.”

Specificity builds credibility. People want to know that they are important, and why they are important. I usually need to draw this out from my clients in the messaging of the opportunity, because as people, it is sometimes hard for us to see the nuance of important opportunities when we are so close to them.

I believe it’s best to spend some time with your fellow partners involved in recruiting to discuss the placements that do not happen. Use this article as a structured dialogue for your meetings about the ones who got away. Use this as a learning tool, and when you do, you’ll be excited when you start seeing more acceptances and more partners moving to your firm. And the sting of rejection will only be a fading and distant memory from the past.

Copyright © 2014 Scott Love

Scott Love grows law firms and accelerates attorney careers by conducting partner-level and group searches for law firms and facilitating law firm mergers. He has been a career ‘headhunter’ since 1995 and is a graduate of the U. S. Naval Academy. Scott lives in Washington, DC, with his wife, two children, and a toothless rescue dog named Smoky. He can be reached at 202-737-5555. To learn more, please visit or email him at

Hey, have you read Above the Law for like one single minute in the past month? If so, you probably know that we’re having this big blogger conference on March 14th at the Yale Club. Yeah, the Yale Club. You’ll be able to recognize me: I’ll be the only big… blogger guy surreptitiously holding a can of crimson spray-paint.

Speaking of coming, you should come. We’ve got CLE and all that. Click here to buy tickets to get CLE credit for listening to bloggers scream about stuff on the internet.

To refresh your memory, details on the panel that I’m moderating — almost entirely sober, mind you — follow.

My panel is called Blogs as Agents of Change, and we’re going to talk about whether all of these spilled pixels are actually making a difference. You know my view… just ask Lawrence Mitchell, but here are the panelists:

  • Kyle McEntee of Law School Transparency: Nobody has tried to use the power of blogging to impact the legal world quite like Kyle. Is it working? Are there best practices that he can share? And how does a blogging crusader actually pay bills and eat?
  • Karen Sloan of the National Law Journal: Karen is who I’d like to be if I grew up. She’s a real reporter. A journalist. She can talk not only about the impact of blogging on actual decision makers, she can also speak to the impact of blogging on the quality of legal reporting. Are we helping, or are we screwing things up for everybody?
  • Joshua Peck of Duane Morris: Peck is the founder of Law Firm Media Professionals. Basically, when bloggers throw a rock at a Biglaw window, Peck is one of the guys who has to replace the glass. If bloggers are making an impact, Peck can tell us how to make a bigger one.

Should be fun. I hope to see you there.

Register today for the LGBT Bar’s Meet the Power Brokers: Financial Regulators event, held on Thursday, March 13 from 4:00 – 7:30pm. The event is specifically geared towards financial regulation and features an educational workshop and networking reception. Topics discussed will include the role of financial regulators, new rules and regulations related to the Dodd-Frank Act and developments in nation and international capital market regulation.

A reception will follow the workshop, allowing financial professionals to network and build relationships with individuals practicing in similar areas. The workshop will be streamed live via webinar for those individuals who are unable to attend the event in DC. For more information and to register, visit or contact Liz Youngblood at (202) 637-7661 or

Tickets to the LeGaL Foundation’s
2014 Annual Dinner and Community Vision Awards
are selling fast

Celebrating 30 Years of Our Bar Association
and 20 Years of Our Foundation

Patron and Standard Tickets are now on sale

LeGaL, the LGBT Bar Association of Greater New York, would like to cordially invite you to the 2014 Annual Dinner of the LeGaL Foundation on Thursday, March 20, 2014 at Capitale. We are incredibly excited for our event this year as LeGaL celebrates the thirtieth anniversary of the bar association and the twentieth anniversary of the foundation (30/20 Celebration).

We are also thrilled that LeGaL will present its 2014 Community Vision Awards that night to Mary Bonauto of GLAD (introduced by Windsor lead attorney Robbie Kaplan) and Brian Ellner of Edelman (introduced by former U.S. Senator Bob Kerrey), two leading players in the critical fight for marriage equality here and nationwide, as well as Credit Suisse.

Tickets are now available at the above link. Those willing to buy at the patron level will receive special recognition in the dinner program.

Many of you have seen firsthand the tireless commitment that is required to offer our community much-needed services and provide our fellow LGBT colleagues in the legal community with the resources needed to further advance their careers. To make those vital efforts possible, the Annual Dinner is the largest fundraising event of the year for the LeGaL Foundation, an organization dedicated to serving the legal needs of the LGBT community of the greater New York City area. On this night, we anticipate more than five hundred members of the New York area’s LGBT legal community and its allies to come together to commemorate the amazing work done this past year in the service of others. With judges, elected officials, and lawyers from all areas of the legal hemisphere in attendance, it is one of the most anticipated and well-attended LGBT events of the year.

LeGaL has served the greater New York LGBT community for decades, and it is vital that we come together as a diverse community of professionals to support the important mission of LeGaL for decades to come.

Get your tickets before they are gone!

CBLA ‘s January 29 program at Fordham was well attended, with well over 200 attorneys having reserved a spot and a good turnout. If you would like to view “China and the FCPA – Challenges for the 21st Centure”, a video of the entire program will be available here (see below at end of this post for more details on the program).

Evan Jowers and Robert Kinney of Kinney Recruiting are available to meet any associates from other practice areas who are interested in an Asia move in the future. Feel free to reach out to them at,, or

Up until only a few years ago it was very difficult, if not impossible, for a US litigation associate to transfer or lateral to Hong Kong / China. Going as far back as ’07, some managed to land offers to transition to transactional practices, but even those relatively rare transition opportunities became nearly impossible to land by late ’07 as many Mandarin fluent corporate / cap markets US associates sought have sought moves to HK / China since the recession of ’08 and ’09, coupled with the IPO boom in Hong Kong / China from mid ’09 to mid ’11 (a HK IPO boom may be back now – but that’s for our next Asia Chronicles post).

Today, there are still only a handful of actual FCPA / White Collar practice groups (with a number of US attorneys, including a head FCPA focused partner) on the ground at US firms in Hong Kong / China – at such firms as Davis Polk, Ropes & Gray, Kobre & Kim, Debevoise, Kirkland & Ellis, for example (Kinney has made a number of FCPA / White Collar associate placements in Hong Kong / China within this group of firms). There are many more firms that have thriving FCPA / White Collar practices in China and in Asia in general, but do not yet have an actual practice group based on the ground in Asia. Some of these firms in the latter category already have great expertise in FCPA in their US offices and have well established strong China clients, so it’s not 100% necessary to have a group on the ground in Hong Kong / China, but it would be convenient if for the right people (such firms are going to be more selective and usually have already a counsel and / or an associate or two on the ground in China already). Most of the firms falling in the latter category want to build an FCPA / White Collar team in Asia and have made some efforts to do so , but it’s easier said than done (especially if a firm is properly focusing on attracting FCPA clients in China with great expertise, rather than just having boots on the ground), due to the difficulty in finding a partner to start the group falling into one of two categories:

a) A US White Collar partner (transfer or lateral) with the right Asia focused practice background, Mandarin fluency (although not always required), connection to Asia and desire to relocate quickly and permanently to Asia; or

b) One of the top 5 or so HK litigation / arbitration law firm partners in the market – this is also difficult because of the need to bring on board a large local group, usually consisting of multiple partners, double digit associates, and integrate into a major US firm different partner billing rates and different associate comp rates. Further, there are only about 5 top 5 or so HK litigators, so they are course very well aware of their great value and leverage in the market. Keep in mind that Hong Kong is likely to implement something very similar to the US’s FCPA and the UK’s Bribery Act. Also, US firms with strong FCPA practices only based in the US can easily incorporate such a new top flight HK local litigation practice into their platform and send a lot of work to. US litigation associates with Mandarin fluency are transferred and lateraled over the firm’s Hong Kong or China offices to fill out the team. It’s all a great plan and top US firms in Hong Kong are engaging in talks with such Hong Kong local litigation attorneys, but there has only been one firm that has made it happen thus far – Davis Polk.

Many US firms want to build up their FCPA / White Collar practices on the ground in Asia not only because it is a particularly hot practice area in the region now, but also because it is arguably the most lucrative practice area at US firms in Hong Kong / China at present (topic for another post).

Further, it is impossible to fill up such a new FCPA / White Collar team in Hong Kong / China with US associates who are both fluent in Mandarin and have been focusing for some years in FCPA / White Collar (very few of such folks exist). The typical US associate lateral hires or transfers in the HK / China based FCPA / White Collar groups are Mandarin fluent commercial litigation or IP litigation associates, who are interested in making a transition to a new litigation practice. Even these candidates are difficult to find, especially if written Chinese native fluency is required. Keep in mind that Chinese background law students at top JD programs up until just recently understood quite well that there was really no shot at lateraling or transferring to Hong Kong / China during their junior or mid-level US associate years if they chose to join a litigation practice during their 2L summers. There are simply not enough candidates today for FCPA / White Collar teams in Asia, especially as more firms seek to have such teams on the ground in Asia, and that will not change for a couple of years, at least, and at that time there will only be enough at the junior levels.

Looking forward, it is a golden opportunity now for Mandarin fluent US litigation associates today to put themselves in a position in Hong Kong / China, in some years, to be one of only a handful of senior associates / counsels in Asia who have focused on FCPA / White Collar for the past several years, while being based in Hong Kong / China. This relatively small handful of senior associates and counsels in the not too distant future will have opportunities for partnerships at other firms and regional counsel / Asia general counsel high level type in-house positions (a post for another day – many senior in-house spots in Asia now have FCPA expertise as big part of the job requirement).

Also, juniors and mid-levels will have a tremendous amount of responsibility in Asia, having a more senior role in corporate investigations than they would have at the same class year level back in the US, especially if their supervising partners are not fluent in Mandarin.

It is an exciting field to be involved in, but not for everyone. A downside is that FCPA is a narrow practice focus and once you have focused on FCPA for some years, that will be your recognized specialty (you will be marketable to move back to US and also of course within Asia). The broader White Collar practice area that FCPA falls under can keep things not so narrow focused for some. Also, it is highly likely that if you land in Hong Kong you will become Hong Kong qualified and gain experience as both a HK and US litigator. Thus, there are ways to keep your practice from being too narrowly focused. Over the next few years though while FCPA work in Asia will likely continue to be red hot, that is going to be the majority of work for new laterals and transfers into new Asia based US White Collar groups. So it may take some effort to keep your practice a bit broader initially. However, as stated above, you will want to be in a position in several years to claim senior expertise on the ground in Asia in FCPA in order to maximize your career advancement potential in Asia, including major firm partnership and senior level in-house marketability.

All of our Asia recruiters at Kinney have a pretty good understanding of FCPA / White Collar work, relative to other recruiters. Evan Jowers, the head of our Asia team, happened to get a lot of White Collar experience during his in-house years. it’s a bit silly to learn about the substantive details of a practice area from recruiters, so we highly recommend going to events like tonight’s CBLA program at Fordham. This event has no more seats available, but you can watch the video of it without having to deal with the cold weather and getting to and from. Here are the details:

Wednesday, January 29, 2014 . McNally Amphitheatre . Fordham Law School
PROGRAM: 6–7:30 p.m.
Opening Remarks: Professor Sean Griffith

Speaker Comments:
Professor Daniel Chow – Professor and Associate Dean, Ohio State University; Author, China Under the Foreign Corrupt Practices Act
Nathaniel Edmonds, Esq. – Partner, Paul Hastings; Former Assistant Chief of FCPA Unit of the Department of Justice
Thomas O. Gorman, Esq. – Partner, Dorsey & Whitney; Former Senior Counsel, Division of Enforcement, Securities and Exchange Commission

Question and Answer Session
Moderator: Professor Carl Minzner

Closing Remarks: The Honorable Denny Chin – United States Court of Appeals for the Second Circuit

RECEPTION: 7:30–9 p.m.

Edith Guldi Platt Atrium

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